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freedom Archives – Concerned Women for America

Defining Reality

By | LBB, Legal, News and Events, Religious Liberty | No Comments

Who defines what is? It’s a strange question. Most people would struggle to even grasp the question at first. The point is reality. Who defines it? The Founding Fathers had a beautiful way of describing things that are “self-evident.” All men are created equal. Says who?

 

Reality says—truth. But the truth is under assault in our day and age. The Founders embraced a Judeo-Christian worldview precisely because it best describes (helps explain) the reality of the human heart and experience. It is self-evident that babies are born male or female. We can observe it and know that it is true. When we look at Scripture, we get insight into that observable reality. “So God created man in His own image, in the image of God He created him; male and female He created them.” (Genesis 1:27)

 

Science, of course, confirms it, as science is based on scientific observations. Our biological makeup, physical, chemical, and psychological, bears witness to that reality. As scientific advancement gives us more information about DNA and XY chromosomes, we only gain more evidence of what is a well-established fact.

 

But from the beginning, the garden’s serpent came to question what was. “Did God actually say?” was its attack then. It still is today. We must realize that this is the battle, in politics, the culture, the church, within your very soul! We either hold on to reality or succumb to the enemy’s manipulations.

 

Redefining reality does not change it. A man is not a woman because he believes he is a woman. He does not become a woman if everyone else around him goes along with it. He and those going along with it are living a lie and lies will always conflict with reality. You may believe you are the man of steel, but you step in front of a bullet at your peril…

Click here to read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

 

Rebuking Jesus—Liberal Elites Know Best

By | Dobbs, Legal, News and Events, Sanctity of Life | No Comments

Our sensory-overloaded society has a hard time focusing. We go from scandal to scandal, emergency to emergency, outrage to outrage. There is no time for serious reflection and introspection—no time for mourning and repentance. It is no wonder we have become so easily deceived and manipulated.

 

The swindle of the radical gender ideology is a perfect example. This week, UC Berkeley School of Law Professor Khiara Bridges testified at a Senate Judiciary hearing titled, “A Post-Roe America: The Legal Consequences of the Dobbs Decision.” Of course, everyone expected the radical abortion position that refuses to acknowledge the humanity of babies in the womb at any point. That sort of callous disregard for human life, even after birth, has become a hallmark of the liberal elites that permeate our institutions of higher learning. What is new is this attempt to present a fact-free, fantastical account of reality as an uncontroverted fact that everyone must pretend to accept or else.

 

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In speaking about the killing of a baby in the womb, Prof. Bridges repeatedly said things like, “I think that the person with the capacity for pregnancy has value, and they should have the ability to control what happens.”

 

To speak of mothers as “the person with the capacity of pregnancy” is deranged. But this is what is being demanded of all of us. Sen. Josh Hawley (R-Missouri) clashed with the new gender ideology golden statue as he tried to probe Prof. Bridges on the matter.

 

HAWLEY: “You’ve referred to people with a capacity for pregnancy. Would that be women?”

 

BRIDGES: “Many women, cis women, have the capacity for pregnancy. Many cis women do not have the capacity for pregnancy. There are also trans men who are capable of pregnancy as well as nonbinary people who are capable of pregnancy.”

 

Click here to watch the clip and read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

No Freedom Without Prayer

By | Case Vault, Legal, News and Events, SCOTUS | No Comments

We are a nation born of the radical idea that “all men are created equal” and “endowed by their Creator with certain unalienable Rights.” That is why liberty and freedom flourished in our nation against all odds. That fundamental appeal to the authority of our Creator, above and beyond earthly governments, levels the playing field among selfish human interests.

 

It is a plea to a higher authority above raw human power, and it necessarily affirms every person’s intrinsic, equal value. It stands squarely against the inevitable attempts of our broken nature to establish one class of individuals above another. These attempts have existed throughout time. They were undoubtedly palpable at the nation’s founding. We still have them today. And they will continue.

 

Eternal vigilance is a prerequisite for sustained freedom in this world.

 

The recent religious liberty win in Kennedy v. Bremerton School District is an excellent example of the efforts needed to preserve liberty in America in the coming years. Increased hostility toward Christ and His teachings is leading our culture to some bizarre conclusions that will devastate our future if they are allowed to take root.

 

At the same time that our culture insists on promoting the early sexualization of our children in schools, with drag queens promoted as the best role models, here, in this case, a Christian coach had to fight all the way to the Supreme Court to defend his unalienable right to pray silently after school football games. He is apparently not the type of role model our kids need.

 

Drag queens, fantastic role models; humble, praying, Christian coaches, horrible-no-good-intolerable role models, according to today’s woke school officials.

 

Like Justice Neil Gorsuch, writing for the majority to uphold Coach Kennedy’s First Amendment rights, pointed out, in the system’s view, “the only acceptable government role models for students are those who eschew any visible religious expression.”

 

Thankfully, the United States Supreme Court has stopped the targeting of our Christian faith for now. However, the attitude that persisted in this injustice for almost seven years against Coach Kennedy still dominates our public educational institutions. And our federal courts, let’s not forget that. The targeting of Coach Kennedy was approved by both the district and the appellate courts.

 

We have so distorted the Constitution throughout the years that public officials actually believed, and again, the lower courts went right along, “not only that it may prohibit teachers from engaging in any demonstrative religious activity, but that it must do so in order to conform to the Constitution.”

 

This is, of course, absurd given our nation’s founding, but anti-Christian forces have used the so-called “separation of church and state” extra-constitutional mantra so often for so long that this misconception of the First Amendment in schools is widespread. Here the Court helps clarify that this misunderstanding of law cannot shield school officials from their intolerant practices. “[T]he only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” the Court wrote. “The Constitution neither mandates nor tolerates that kind of discrimination.”

 

Religious speech is speech. It should be afforded all the constitutional protections traditionally applied to any other speech. Instead, for years, it has been particularly targeted because it is religious. This boggles the mind when one considers that, if anything, religious expressions were singled out in the Constitution as perhaps worthy of heightened protection. As the Court wrote:

 

In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so.

 

That double protection the Court references was also a crucial part of the opinion because, for years, some have tried to pit the free exercise and the establishment clause against each other, but instead, “the Clauses have ‘complimentary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”

 

The school district here thought it needed to choose between the two. The Court explained: “[T]the District effectively created its own ‘vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other,’ placed itself in the middle, and then chose its preferred way out of its self-imposed trap.”

 

The school officials were simply mistaken, as they are so often. “And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.” This should have been apparent, especially for the judges reviewing the cases. “We are aware of no historically sound understanding of the Establishment Clause that begins to ‘mak[e] it necessary for government to be hostile to religion’ in this way,” the Court wrote. There is none. The courts below did not cite one either.

 

Instead, they relied on the infamous Lemon test, which “called for an examination of a law’s purposes, effects, and potential for entanglement with religion.” The test has long been criticized for fundamentally distorting the original meaning of the First Amendment.

 

Concerned Women for America (CWA) has long joined that chorus of criticism, asking the Court to abandon it. As the Court held, “the ‘shortcomings’ associated with this ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause became so ‘apparent’ that this Court long ago abandoned Lemon and its endorsement test offshoot.”

 

Lemon is dead. Justice Gorsuch’s straightforward treatment leaves no doubt for lower courts. “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.'”

 

Under that standard, it is clear that “in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”

 

Of course, some will still find offense at any public expression of faith—especially the Christian faith. But “[o]ffense. . . does not equate to coercion,” and the Court puts that “hecklers veto” to rest masterfully.

 

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.”

 

Ordinarily, the Court would spend some time describing the different standards of review, but this case was so clear that the Court said, “it does not matter which standard we apply. The District cannot sustain its burden under any of them.”

 

This is a strong opinion that we hope can help lower courts and even school officials better understand the constitutional burdens they bear when dealing with sincere religious exercises going forward. They would be wise to train their instincts towards accommodation.

 

As the Court concluded, “Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.” Well said.

SCOTUS

Super-Duper Supreme Court Term

By | Case Vault, Legal, SCOTUS | No Comments

Remember when some tried to sell Roe as “super-duper” precedent? Well, it didn’t work. Roe is gone (all praise be to God!), but we have been indeed left with something “super-duper”—this Supreme Court term. It was just superb.

 

It all starts with Dobbs, of course (and that would be more than enough to celebrate), but it went beyond that, and I wanted to take a moment and celebrate with you each victory by presenting to you a short summary of the term’s most amazing top 5 wins!

 

  • Dobbs v. Jackson Women’s Health Organization— The Court declared unequivocally that the United States Constitution does not and has never conferred a right to abortion. Therefore, the Court spent much time discussing the grave errors in the Roe and Casey framework before formally overruling them and returning the authority to states to be free to protect unborn life in the best way they see fit.

 

  • Whole Woman’s Health v. Jackson— Just before the Dobbs case was argued, the Court heard a challenge to the Texas Heartbeat Act. The state law prohibits most abortions after a heartbeat can be detected through an ultrasound, but it has no state law enforcement mechanism, only private enforcement action. The pro-abortion side wanted the Supreme Court to intervene to stop the law, but the Court correctly refused to intervene. The practical result was that almost 8,000 babies were saved in the first three months after the law went into effect.

 

  • Shurtleff v. City of Boston— A unanimous Court here agreed that the First Amendment rights of Harold Shurtleff, the director of Camp Constitution, were violated by the city of Boston when it refused to allow him to fly the Christian flag at a public pole that the city had made available for private groups to fly different kind of flags indiscriminately.

 

  • Carson v. Makin— The Court held Maine’s “nonsectarian” requirement for generally available tuition assistance payments to parents who lived in a district that did not operate a secondary school of their own violated the parent’s First Amendment free speech rights. Parents are free then to use the money to send their kids to any school they want, treating all schools, secular or religious, equally, instead of targeting religious schools for discrimination.

  • Finally, Kennedy v. Bremerton School District— the Coach Kennedy case, as most of you know it. Coach Kennedy was unjustly fired for silently praying at midfield after football games. The Supreme Court has now made official the fact that he was fired, not only unjustly but unconstitutionally. What a sweet victory for this man and his family, who have fought for almost seven years to protect our religious liberty rights. The Court held that both the free exercise and free speech clauses of the First Amendment protect an individual’s right to engage in a personal religious observance. The Court said, “The Constitution neither mandates nor permits the government to suppress such religious expression.”

 

Can we stop and thank God for His goodness, mercy, and grace? All of these are part of just one Supreme Court term. We can expect more! The Constitutional imbalance we have been living (and suffering) under is slowly being straightened back to a more faithful and impartial application of justice. We are sure to reap the blessings of these actions for decades to come.

A Prayer of Thanksgiving that Roe is No More

By | Dobbs, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

As the deer pants for the water,

So we have longed to see

Your righteousness restored, oh Lord

With the demise of abortion on demand in our land.

 

This was a seemingly impossible task,

The world told us.

“Abortion is our right,”

They screamed, as millions of babies died.

 

For fifty years Roe hung

Like an evil dark cloud of judgment

While many mocked You and Your Word

As approving of such barbarity.

 

But we, the remnant, had faith in You,

In justice and truth.

We drank the tears of repentance for our nation

And prayed diligently, without ceasing.

 

We hoped in God alone,

Therefore, we know our redemption

Was secured. Those who trust in You

Are never disappointed!

 

Thank You, Father!

Thank You, Jesus, the Son!

Thank You Holy Spirit, for guiding us!

All glory to You.

 

As hard as we have worked,

To see this day of joyful deliverance,

We know it was not our efforts,

But the Lord’s grace. Amen!

 

Grace, grace!

God’s grace!

That grace that pardons and cleanses within,

Grace that is greater than all our sins.

 

Even the great sin of abortion

Melts away— as far as the East is from the West

Your grace removes our transgression

And gives us hope for the future.

 

Now, we pray peace in our land, Lord.

Calm the hearts not set on you,

Let not the Enemy use and abuse

Any more women in the cause of death.

 

Help us to care for all mothers

And their children, born and unborn.

Help us to trust and pray, even more,

Until the day of Your return.

 

Amen.

Justice Restored—Roe Overturned

By | Dobbs, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

“Down goes Roe.” You could almost hear it from inside the U.S. Supreme Court (in that iconic Howard Cosell voice). And just as Cosell said of George Forman, the pro-life movement “is as poised as can be.” Justice demanded an end to Roe. Justice, we got.

 

In a stunning 6-3 masterclass opinion delivered by Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett, with Chief Justice Roberts concurring in judgment (but saying he would not go so far as to overturn Roe and Casey), the Court simply holds: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

 

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

 

“The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion,” the Court wrote. First, the Court acknowledges the obvious, “The Constitution makes no express reference to a right to obtain an abortion,” and turns at once to the many theories that have been offered throughout the years to manipulate the constitutional text and read a right to abortion into the Constitution. “Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments,” the Court explains. Casey shifted that and “grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause.”  Still, others tried the Equal Protection Clause of the Fourteenth Amendment.

 

It is refreshing to see the Court refuse to play the usual pro-abortion games in law and instead conclude, “regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures.” …

 

Please, click here to read the rest of this column as featured on American Thinker.

Grasping at Straws on Dobbs

By | Dobbs, LBB, Legal, News and Events, Sanctity of Life, Substack | No Comments

The boorish left is having a full-blown meltdown over the leaked opinion in Dobbs v. Jackson Women’s Health Organization and its impending official release by the United States Supreme Court. Justice Samuel Alito’s unassailable, monumental takedown of Roe v. Wade and Planned Parenthood v. Casey’s complete lack of constitutional underpinning has them panicked.

 

It is certainly not the result they want. That is the reason for all the screeching, weeping, and gnashing of teeth we have seen in front of the Supreme Court and at the constitutionalist justices’ homes in clear violation of federal law. But the worst part about it is that Roe’s legal reasoning is such a dud that all they are left with is trying to manipulate what they see as the internal soap opera at the Court. Their target, as usual, is Chief Justice Roberts, who they hope can somehow swindle other justices into keeping Roe alive.

 

Politico’s Senior Legal Affairs Reporter Josh Gerstein’s latest “What a Roberts compromise on abortion could look like” is the latest not-so-subtle attempt at this. “It’s a longshot,” says the tagline on the piece, “but court watchers are closely eyeing the chief justice for middle ground on Roe.”

 

Gerstein acknowledges no one wants this middle ground. The pro-abortion side emphatically rejected it at oral arguments. Still, they can dream. Here is how he summarized the feeble argument of this dream opinion: “The central organizing principle for a Roberts opinion is likely to be one he has articulated many times: that the court shouldn’t issue a sweeping decision when a more modest one would do.” …

 

 

Click here to read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

Female Athletes Are Being Victimized to Pander to the Personal Fantasies of a Few

By | LBB, Legal, News and Events, Sexual Exploitation, Women's Sports | No Comments

Women athletes are in danger of losing their rights to the desires of men who feel they are women.

 

The anti-science effort to erase the physical differences between men and women is regressive and dangerous. Women are being victimized in the name of an AstroTurf diversity that discriminates against all who do not conform to the personal fantasies of a few.

 

The effort has consequences that go well beyond women’s athletics. In April, a male Rikers inmate claiming to be a woman was sentenced to seven years for raping a female prisoner in the women’s section of the jail. Concerned Women for America, the organization I represent — a Christian, conservative organization — is supporting a lawsuit by the liberal feminist organization Women’s Liberation Front to fight for women’s rights on this front.

 

We are also witnessing the pernicious promotion of transgender ideology in public schools, which ignores the sadpractical reality of the harmful long-term effects of life-altering surgical procedures on all young people, but on young women in particular.

 

But legally speaking, the women’s sports aspect of this battle, which has the backing of Title IX of the Education Amendments of 1972, should be preventing the injustices we are witnessing…

 

Read the rest of this op-ed as featured exclusively on The Western Journal.

You Can’t Undo the Supreme Court Leak

By | LBB, Legal | No Comments

The United States Supreme Court has stayed relatively quiet following the shameful news of the leaked Dobbs draft opinion. Chief Justice John Roberts issued a statement condemning the leak and calling for an investigation, but we have heard nothing else since.

 

As you know, Concerned Women for America (CWA), though encouraged by the content of the opinion, refuse to engage in any public analysis of its content, believing the ethical breach by someone at the Court, presumably a liberal clerk, worthy of the utmost contempt.

 

In a recent interview, Justice Clarence Thomas tried to put words to the magnitude of the breach, and I think you must be aware of his wise words. He was interviewed by his former law clerk John Yoo at an event in Dallas. He said:

 

“[T]he institution that I’m a part of if someone said that one line of one opinion would be leaked by anyone in you would say that, ‘Oh, that’s impossible. No one would ever do that.’ There was such a belief in the rule of law, belief in the court, a belief in what we were doing, that that was verboten. It was beyond anyone’s understanding, or at least anyone’s imagination that someone would do that. And look where we are, where now that trust or that belief is gone forever. When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity that you can explain it, but you can’t undo it.”

 

The Supreme Court will never be the same. We must reckon with that reality. We don’t even know the extent of this breach yet. Help me pray that the person responsible is exposed convincingly so that they can be severely punished. That would help tremendously. We expected this would be quickly resolved, given how tight things are kept within the Court, but nothing has been announced.

 

The warning is broader than the Court. Justice Thomas said:

 

“I think we are in danger of destroying the institutions that are required for a free society. You can’t have a civil society, a free society, without a stable legal system. You can’t have one without stability and things like property or interpretation and impartial judiciary. And I’ve been in this business long enough to know just how fragile it is.”

 

Most Americans can see that. Both the Court and the Country are in a fragile state. We must proceed with caution and urgency. We need courage. Justice Thomas spoke about that too. “I think a lot of people lack courage,” he said, “like they know what is right, and they’re scared to death of doing it.” He is right, of course. We need help from above, no doubt.

Concerned Women to Biden Administration: Stop the Assault on Women’s Rights; Protect Title IX

By | Erasing Women, News and Events, Social / Cultural Issues, Women's Sports | No Comments

The Office of Information and Regulatory Affairs (OIRA) of the United States Office of Management and Budget (OMB) is reviewing the Department of Education’s (ED) plans to unilaterally amend Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) to follow along with the Biden Administration’s radical push for an elevation of the concerns of men who identify as women, over those of women in all areas of federal law. It will effectively be the destruction of Title IX.

 

President Joe Biden has ignored the concerns of millions of women as he moved swiftly on an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, and another one on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, including Sexual Orientation and Gender Identity. Women lose under the proposed extreme implementations of these orders, and that is why Concerned Women for America (CWA) is standing in strong opposition.

 

Recently, CWA’s Doreen Denny, one of the nation’s leading experts on the protection of women’s rights against the gender identity push that seeks to erase women’s unique makeup as women, Annabelle Rutledge, National Director of CWA’s Young Women for America program, and Mario Diaz, CWA’s General Counsel met with high-level officials from OMB and ED to express the concerns of the hundreds of thousands of concerned women members from around the country.

 

Denny’s statement set the tone for CWA’s clear stance for women and scientific truth in policymaking. She said in part:

 

Forcing a new interpretation of sex under Title IX is a direct threat to every woman and girl in America. What this proposed rule does in practice is nothing less than erase our status and protections as females. There is an inherent conflict in these policies already playing out across the country today:  female students are being assaulted in school restrooms; female athletes are losing their rightful opportunities in WOMEN’s sports. Have you quantified those costs?

 

Let’s be clear: “gender identity” does not equal sex. Therefore, it should not be used to undermine Title IX protections for women. “On the basis of sex” as stated in Title IX, should be based solely on the immutable genetic fact of being male or female – not on gender perceptions.

 

A person’s subjective claim to being the opposite sex does not, and will never, make that person the opposite sex. Gender dysphoria is a real condition, and its treatment deserves compassion – but the answer is not to affirm a lie and require everyone else to comply.

 

Biology is not bigotry. As women, we expect that the sex discrimination protections of Title IX passed into law 50 years ago will continue to protect our safety, privacy, and opportunities based on our objective female status – as intended.   Whatever objective you have for “inclusion” must not be accomplished on the backs of women and girls.    

 

Ms. Rutledge followed up with a passionate plea representing the young female athletes who feel entirely ignored and under threat because of these ill-conceived, radical policies. Her statement said in part:

 

Young Women for America is made up of these brave women in high school, college, and young professionals. Each group is directly impacted by a refusal to uphold Title IX.

 

Our Young Women for America leaders have stepped up to the plate to do their part to protect women’s sports and are begging that you respect reality and basic biology by rejecting any proposed rule which would include gender identity. Gender identity is not sex.

 

We are in an unfortunate situation when high school and college-age females are having to uphold reality while government entities seem bent on undermining Title IX at every turn. Our leaders have asked for excused absences, covered their work shifts, and taken tests early so they can show up and fight for their rights by testifying in committee hearings and press conferences. They understand it is not just their rights, but the rights of all women who are coming behind us.

 

You may not be hearing these tragic stories – but sadly I  hear them too often.

 

You can check out some of the testimonies below:

 

 

Finally, CWA’s General Counsel spoke about the illegality of trying to amend the clear text and protections under Title IX’s legal classification of “sex” by unilaterally changing the meaning to include “gender identity.” Diaz cautioned of the unintended consequences for women and of clear Supreme Court precedent that has ruled against such manipulation of federal law through administrative rules and procedures.

 

The Biden Administration officials were respectful and welcoming of CWA’s comments and expertise in this area. We can only pray that they actually take our counsel and slow down the left’s radical push in this area so that they may stop trampling on hard-fought, historical women’s rights victories in pursuit of a counterfeit diversity policy.

Boston Violates First Amendment by Targeting Christian Flag

By | Case Vault, LBB, Legal, News and Events | No Comments

All nine justices of the United States Supreme Court agree in Shurtleff v. City of Boston. The city violated the First Amendment rights of Harold Shurtleff, the director of Camp Constitution, by refusing to allow him to fly the Christian Flag at a public pole where the city allowed private groups to fly their flags indiscriminately.

 

“The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent,” wrote Justice Stephen Breyer in his majority opinion as the Court concluded what Boston was engaging in was not government speech. “Boston told the public that it sought ‘to accommodate all applicants’ who wished to hold events at Boston’s ‘public forums.’” Except for those pesky Christians.

 

Thankfully, the Court 9-0 (though using different rationales) declared, “Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment.” The Court correctly stated, “When the government does not speak for itself, it may not exclude private speech based on “‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”

 

Breyer’s majority opinion was joined by Chief Justice Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. They were also three concurring opinions. One by Justice Kavanaugh, a second by Justice Alito joined by Thomas and Gorsuch, and a third by Justice Gorsuch joined by Justice Thomas.

 

Justice Kavanaugh, concurring, made clear this case only got to the Supreme Court “because of a government official’s mistaken understanding of the Establishment Clause.” We should also add that many judges share the mistaken view, also. But as Kavanaugh writes, “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

 

Justice Alito’s concurrence agrees with the Court’s ultimate conclusion but disagrees with the majority’s analysis. And with good reason. Justice Alito rightly points out that some of the “tests” the majority uses to answer the question here, like “the extent to which the government has actively shaped or controlled expression,” can actually be used by bad actors to discriminate against those with whom it disagrees. But that, too, would be an impermissible violation of the First Amendment.

 

Justice Alito smartly advocates for a more precise and robust definition of government speech, which, after all, is the only organism restricted by the First Amendment. “Government speech,” he writes, “is thus the purposeful communication of a governmentally determined message by a person exercising a power to speak for a government.” Furthermore, after establishing that government speech is at issue, “the government must establish it did not rely on a means that abridges the speech of persons acting in a private capacity.” This is the type of clear definitional guidelines that will help judges around the country administer justice in a much fairer way. Let us hope Justice Alito’s test finds wide acceptance in the years to come.

 

Finally, Justice Gorsuch writes a concurring masterpiece on what is known as the Lemon test. This is an approach that Concerned Women for America  has asked the Court to overturn on many occasions. As he wrote, “Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game.”

 

The historical discussion especially is worthwhile in Gorsuch’s concurrence; I commend it to you. Here is a taste (citations omitted):

 

As a close look at these hallmarks and our history reveals, “[n]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.” For most of its existence, this country had an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.” In fact and as we have seen, it appears that, until Lemon, this Court had never held the display of a religious symbol to constitute an establishment of religion. The simple truth is that no historically sensitive understanding of the Establishment Clause can be reconciled with a rule requiring governments to “roa[m] the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine.” Our Constitution was not designed to erase religion from American life; it was designed to ensure “respect and tolerance.”

 

It is a critical discussion that accentuates his clear thinking on religious liberty issues.

 

This is a great win that envisions even greater protections for religious freedom for decades to come—a great development for all Americans regardless of religious belief.

 

Reason Demands an End to Roe

By | Dobbs, LBB, Legal, News and Events, Sanctity of Life, Substack | No Comments

A young wife and her husband were enthusiastically awaiting the birth of their first baby. It was a girl. They had already done a big baby shower with family and friends; they had bought all the furniture and decorated the room— a beautiful retreat of yellow and pink. They had faithfully kept every doctor’s appointment and attended all the classes, learning everything about what to expect when you’re expecting. They had even named her: Mary Beth.

But at 28 weeks (7 months), mom confesses she was not ready. She is just too young and not mentally and emotionally prepared to be responsible for another human being. So instead, she wants to have an abortion.

Dad earnestly pleads with her to no avail. “It’s my body,” came the answer.

“Is an abortion even legal so far along in a pregnancy,” he thought? Yes, one quick Google search informed him that there are no limits even for late-term abortions in their home state of New Jersey. He quickly found a clinic’s website offering the service and explaining a third-trimester abortion procedure, but he could not bear to finish reading the short description. He even explored legal options but has no recourse.

So, on a day they were supposed to go to another doctor’s visit and see their baby girl on the latest sonogram, mom will instead drive to an abortion clinic to “terminate her pregnancy.”

Such is the state of abortion policy in our nation. It is part of the wretched legacy of Roe v. Wade, the Supreme Court decision that invented a constitutional right to abortion…

Click here to read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

Catastrophic Day 2 for Ketanji Brown Jackson

By | Breyer, Judicial Nominations, Legal, News and Events, SCOTUS, Vacancy | No Comments

Early in the second day, the focus of the hearings for Ketanji Brown Jackson’s (KBJ) nomination to the United States Supreme Court was on a concerning pattern that has emerged where KBJ has given low sentences to defendants in possession of child pornography. Having given ample room for KBJ to explain her thought processes in these cases, we can say the explanations we heard were simply unsatisfactory.

Sen. Josh Hawley (R-Missouri), who had given KBJ the specific cases he was interested in, drilled down on one particular case that illustrates the problem. The clip is long, but it is eye-opening, I commend it to you in its entirety:

It is troubling, no doubt. Again, she was given time to prepare to answer questions about those specific cases, so to try to obfuscate the issue with a lack of record is not reasonable. The concern is compounded by the fact that Democrats have denied the Republicans’ requests to release the records from KBJ’s time in the Sentencing Commission.

Even Judiciary Chairman Sen. Dick Durbin (D-Illinois) seemed to agree with Sen. Hawley that the case was unacceptable and suggests it is Congress fault. He suggests that they need to pass a law to prevent judges like KBJ from enacting sentences like she did in that case. Watch:

Her performance devolved from there. She could not answer Sen. John Kennedy (R-Louisiana) when he asked her when does life begin, even though her advocacy for pro-abortion groups is well established. How can someone who doesn’t know when life begins fairly decide when life can be terminated?

The issue was explored further by Sen. Marsha Blackburn (R-Tennessee) who got some incredible confessions out of KBJ as she tried to distance herself from the language she approved of in a brief she cowrote calling pro-life advocates a “hostile, noisy crowd of ‘in-your-face’ protesters.” She apparently didn’t really mean it. She was just “lawyering,” you know. Take a look at this troubling exchange. Take special note of her admission that the Constitution says nothing about abortion, even as she apparently supports the Court in making up such rights by judicial fiat.

But the lowest point of the evening came when Sen. Blackburn tried to address the issue of gender with KBJ. The nominee could not even provide a definition of what is a woman. Apparently, one needs to be a biologist to define the term. Take a look for yourself:

How is a justice supposed to stand up for women’s rights if she cannot even tell you what a woman is? Her non-answer is revealing.

Concerned Women for America (CWA) has been at the hearings, monitoring closely every second. We have given her a fair hearing. But the bottom line after day two is that Judge Ketanji Brown Jackson simply cannot be trusted. Therefore, how could she be entrusted with a lifetime appointment to the nation’s highest court in the land? There are still a couple more days of hearings, but the damage she has done today seems too much for anyone to overcome.

Stay tuned.

Ketanji Brown Jackson – Judge or Policy Maker?

By | Breyer, Judicial Nominations, LBB, Legal, News and Events, SCOTUS, Vacancy | No Comments

The first day of the hearings of Judge Ketanji Brown Jackson’s (KBJ) nomination to the United States Supreme Court is over. Members of the Senate Judiciary Committee got an opportunity to make opening remarks, and then we heard the opening statement from KBJ.

In his opening remarks, Sen. Ted Cruz (R-Texas) set up the hearings well by addressing why nomination hearings have become so controversial. Judicial activists taking on the role of legislators has much to do with it. Here is the clip:

This is the central question to assess in looking at this nomination. Will she be the type of justice that sees her role as one who brings “progress” to the law, pushing legal interpretation beyond the text of the law and the Constitution in order to implement policies that they personally believe are important.

Roe v. Wade is the classic example of the justices reaching beyond the text of the Constitution in order to implement changes they personally deem important. KBJ’s support for abortion “rights” is alarming, and it is one area that we hope we can hear more about during the hearings. Note the difference. The support of the policy is not the issue. The use of legal interpretation as a way to promote social or cultural change is the crux of the matter.

The Court is primed to hear some crucial cases in the coming years in which this type of judicial philosophy will be crucial to the protection of our liberties. We were grateful for Sen. Marsha Blackburn (R-Tennessee) for bringing up some the issues of parental rights and women’s rights during her opening remarks. Here’s that important clip:

Sen. Josh Hawley (R-Missouri) also raised some important questions regarding KBJ’s work as a trial judge deeply involved with sentencing matters. He listed several concerning cases related to the very sensitive issue of child pornography. As Sen. Hawley ended his opening remarks, we look forward to hearing the nominee’s explanation in the next few days.

Finally, we were glad Sen. Cruz heard our request for some accountability on the incredible injustice done to Justice Kavanaugh and the numerous blatant violations of Senate procedures committed for purely partisan reasons. This fact should never escape conservative senators’ minds going forward until some accountability is implemented.

Concerned Women for America (CWA) is at the hearings right now meticulously monitoring this nomination and will have updates for you throughout the week as we get into the question and answers portion of the hearings which we hope will help to shed more light on the concerns about the type of justice KBJ would be.

CWA Joins Call on Congress to Stop Medicaid Funding of Faulty Prenatal Tests

By | News and Events, Sanctity of Life | No Comments

Concerned Women for America (CWA), joined a broad coalition of pro-life leaders calling on Congress to stop any Medicaid funding of prenatal genetic testing that has been shown to give a disturbing amount of false positives, causing many women to terminate their pregnancies based on wrong information.

The letter, addressed to Sens. Debbie Stabenow (D-MI) and Steve Daines (R-MT), Chairman and Ranking Member of the Senate Finance Subcommittee on Health, and Reps. Anna Eshoo (D-CA) and Brett Guthrie (R-KY), Chairman and Ranking Member of the House Energy & Commerce Subcommittee on Health, explains in part:

These tests, which are marketed to expectant families as a way to determine whether their unborn child suffers from a rare genetic condition, are wrong a remarkable 85% of the time according to one recent report Considering the fact that these unreliable tests are now used by more than a third of pregnant women in America and that many families have tragically opted for an abortion when a potentially false positive is rendered instead of seeking another test to confirm the result, the lives of millions of unborn children are at risk.

Click here to read the letter.

 

Shining a Light on Education

By | Education, LBB, News and Events | No Comments

I believe it was Voltaire who said, “Common sense is not so common.” Such is the case for the educational bureaucracy suffocating our children’s future with their sociological experiments in public schools. Parental involvement and transparency seem like common sense requirements to any successful public-school program, but not according to the radicals who so often have taken over education in our cities and states. They are hurting our kids, putting on them unnecessary burdens to satisfy their personal cravings while actively shielding themselves from accountability by keeping parents in the dark.

The age of Tik Tok has exposed how a disturbing number of teachers use their classrooms for self-affirmation, with many planning their “coming out” as LGBTQ+ as teaching exercises, or tricking students into pledging to the LGBTQ+ flag, or incentivizing them to attend Antifa rallies for classroom credit, or promoting Critical Race Theory (CRT) themes to shame white students about their “privilege.” The list is endless.

The curriculum and books assigned are often chosen to support these same radical ideas. Iowa Gov. Kim Reynolds (Republican) recently brought attention to one book being used. In a recent interview, she quoted from the “memoir-manifesto” called “All Boys Aren’t Blue” by the self-identified “non-binary” author George Johnson. The scene she mentioned describes a graphic and disturbing sexual act between two cousins, both male. I will not quote the passage as it is too graphic, but, just so you get a taste, it starts with, “You told me to take my pajamas, my pajama pants … You then took off your shorts, followed by your boxers.”

There are hundreds of books like this in our K-12 school libraries all over the country. Some may be in your child’s school. But you are kept in the dark by design.

The answer to the works of darkness is always light. This is the invitation that Paul gives us in Ephesians 5:11 to “Take no part in the unfruitful works of darkness, but instead expose them.”

In that spirit, I want to highlight for you one effort that every state should take up. These are efforts to require school curriculum, resources, and training materials to be posted and easily searchable to the public online. If your state does not have this law, I encourage you to approach your elected state representative or senator with the idea. Christopher Rufo at the Manhattan Institute, who has been an important voice exposing the CRT tentacles in our society, has a model bill called “A Model for Transparency in School Training and Curriculum,” which can be a useful starting point.

But a number of states have similar legislation in the works — Arizona, Utah, Indiana, Pennsylvania, West Virginia, among others.

Transparency is the key. No longer should school bureaucracies be able to shield bad actors within our education system, as they have done for years.

But rest assured that school bureaucracies will not give up that power easily. It must be demanded. By you and me.

Breyer Retires

By | Breyer, LBB, SCOTUS, Vacancy | No Comments

I was done writing my newsletter piece to you when the news broke. Justice Stephen Breyer is retiring. That changes things a bit.

No official word from the Supreme Court, though, which is interesting and suggests someone talked without authorization. It immediately brought memories of these radical groups in Washington, D.C., driving trucks saying “Breyer Retire” all over town, trying to bully him into submission. The Left is so eager to see him gone that they even messed up his announcement. Usually, the justice who is retiring gets to announce it himself. He must not be happy.

Whatever the case, the radicals got their wish. Breyer is retiring, they have the majority in the U.S. Senate, and President Joe Biden gets to appoint whomever he wants.

Except, that is not entirely true. President Biden made a pledge. During the 2020 presidential debate in South Carolina, when his campaign was struggling to get off the ground, then-presidential candidate Biden promised that, if elected, he would appoint the first African American woman to the Supreme Court. “Not a joke,” he emphasized with his usual common-man style.

As told through different reports, the story of the pledge behind the scenes is not about sincere, ordinary person concerns for the country but about raw politics, as you might have guessed.

The story goes that candidate Biden desperately needed the endorsement of one of the most influential figures in South Carolina, House Majority Whip James Clyburn, who had also been the chair of the Congressional Black Caucus. Without his endorsement, the whole campaign could tank. Clyburn asked him not only to commit to appointing the first African American woman but also to pledge it publicly during the debate.

According to Jonathan Allen and Amie Parnes, who wrote the book “Lucky,” Clyburn was so frustrated when he didn’t hear candidate Biden say the pledge publicly that he went backstage during one of the breaks to put pressure on him. “Don’t you leave this stage without doing it,” he is reported saying.

And so, he did. Now, President Biden is locked into a very narrow pool of candidates, not based on professional qualifications and merit, but on identity politics. Sad to see the judicial nominations process reduced to these sorts of calculations.

Given that, some names are already floating around. Judge Ketanji Brown Jackson, who was recently elevated to the U.S. Court of Appeals for the D.C. Circuit, which is said to be the second-highest court on the land, is the first name you will hear. She is a former clerk of Justice Breyer.

California Supreme Court Justice Leondra Kruger has also been mentioned, as well as South

Carolina U.S. District Judge Michelle Childs and NAACP attorney Sherrilyn Ifill.

For our part, we must add this nomination to our prayers as we continue to lift up the Court on the upcoming Dobbs decision. As CWA President Penny Nance said in her statement on Justice Breyer’s resignation, let us pray for President Biden that he may use this opportunity to unite the country, instead of further alienating half, to appease the most extreme elements of his party.

“The president has a chance to finally unify the country with a consensus nominee, breaking away from the shameful and vile tactics we have experienced in recent Supreme Court nominations,” Penny said.

Let us pray as one for that as we await an official announcement. And stand by, ready to lift our voices for justice.

Drama at Supreme Court on Texas Abortion Law Case

By | LBB, Legal, News and Events, Texas | No Comments

If there is drama at the U.S. Supreme Court these days, you can rest assured that Justice Sonia Sotomayor is at the center of it. And when the issue in the case is protecting unborn babies, you already know the side for which she fights. So here is why you are hearing so much about her and what the U.S. Supreme Court did in the Texas abortion law case.

If you remember, last time, the Supreme Court dismissed most of the challenges against the law but left the one against the medical licensing officials to go on. That is the case the Fifth Circuit was to consider when Texas asked that the question of whether the medical licensing official can enforce the law if it is violated be sent to the Texas State Supreme Court for clarification as to what the state law allows. The Fifth Circuit allowed that to proceed. This makes sense because the case deals with state law, not federal law.

The pro-abortion side objected to this because it would cause a delay in the proceedings while the law is still in effect. So, they went back to the U.S. Supreme Court and asked it to intervene to stop the case from going to the Texas Supreme Court. The Supreme Court denied the request, making no judgment, but simply allowing the proceedings to continue.

That’s where the pro-abortion advocates at the Supreme Court led by Justice Sonia Sotomayor lost it. They dissented with much fanfare, saying, “The Fifth Circuit should have immediately remanded this case to the District Court, allowing it to consider whether to issue preliminary relief.” Imagine all these babies being born in Texas. Preposterous, in their view. It is a disaster as far as Justice Sotomayor is concerned. She wrote, “This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.”

Aside from the forceful pro-abortion advocacy of Justice Sotomayor, supported by Justices Stephen Breyer and Elena Kagan, not a lot has happened in the case. It is still ongoing. Texas may still lose in the end. The ruckus you read about in the media is the early signs of desperation from the pro-abortion side.

It is a preview of what we can expect when the Dobbs decision is handed down if it does not live up to their abortion on demand for any reason up to birth dreamland.

CWA Stands for Religious Freedom and the Christian Flag at the Supreme Court

By | LBB, Legal, News and Events | No Comments

Today, Concerned Women for America (CWA) was proud to stand for the Christian principles of our founding in an important First Amendment case before the United States Supreme Court. Annabelle Rutledge, National Director of CWA’s Young Women for America program, delivered an impassioned speech (below) in front of the Court as they heard oral arguments in Shurtleff v. Boston.

 

Statement by Annabelle Rutledge
National Director
Concerned Women for America’s Young Women for America
Delivered January 13, 2022, at the United States Supreme Court
Shurtleff v. Boston Oral Arguments Rally

Good morning everyone

My name is Annabelle Rutledge from Concerned Women for America, the largest public policy organization for women in the nation. I serve as the national director of CWA’s Young Women for America project, which is training the next generation of young women on the Christian and constitutional principles that are the foundation of our liberties and freedoms.

I stand here on behalf of hundreds of thousands of women who want to see an end to the pernicious hostility towards religion that has become all too common in our day and age. If we are being honest, the hostility we see in many cases is directed specifically at Christians.

Many Americans fail to realize that the very foundations of the liberties they enjoy sprout out of Biblical soil. Therefore, in attacking religion as a whole, and Christianity more specifically, they work against their own interests, against their own liberty.

This case is a prime example that sometimes the loudest voices crying for diversity and tolerance are the most intolerant of diversity when that diversity is also inclusive of people of faith with whom they disagree.

The City of Boston has a worthy goal for its flagpole policy in its city hall plaza. The city explained that it wants “to create an environment in the City where everyone feels included and is treated with respect.” Except that “everyone,” according to the City of Boston, does not include Christians—we are apparently the right kind of people to exclude.

The city’s website further explains their policy this way, “We also want to raise awareness in Greater Boston and beyond about the many countries and cultures around the world. Our goal is to foster diversity and build and strengthen connections among Boston’s many communities.”

Accordingly, LGBTQ+ communities are loudly celebrated, their flag displayed with pride, no pun intended. Likewise, flags with Muslim themes from countries other than our own are welcomed with open arms. “Yay, diversity!”

But the flag that represents the faith of the very people who founded the City of Boston (the Puritans) that flag is just not welcomed. For Boston, diversity stops at Christianity’s doorsteps.

Needless to say, this nonsensical policy stands in clear violation of the First Amendment to our Constitution, which states plainly, as applied to the states, that the city “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” In targeting religious speech and somehow saying it is unworthy of the same protections afforded other types of speech, the city violates the most basic principles of justice and fairness, not to mention the essence of our First Amendment.

As we pointed out in our brief before the Court, the city’s attempt to differentiate between religious organizations and civic organizations fails to recognize the nature of our faith. By their very nature, religious organizations are civic organizations. Our concern for the poor and needy, for the weak and oppressed, and for justice and righteousness cannot be contained to the four walls of a building. Call that building a church or call it what you want.

Our faith is a living faith. We are called to go and love our neighbors. We cannot do otherwise.

That faith gave birth to many of the freedoms we enjoy. The faith that is at the root of the City of Boston, whose very city flag contains its motto in Latin words that read, “God be with us as he was with our fathers.”

Fitting, since from the founding of our country, churches have been the most important civic institution, bringing incredible progress. It is why the Northwest Ordinance of 1787 declared that “religion, morality, and knowledge [were] necessary to good government.”

The words of John Adams also stand as a similar reminder when he said that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Religion and faith are not only compatible with our Constitution; they are indispensable to its proper understanding.

We are confident the Supreme Court understands this, and we expect a unanimous Court to send a clear message by striking down this unconstitutional policy.

Thank you.

Click here for a PDF version of the statement.

Sensible Supreme Court Opinion Halts Vaccine Mandate

By | Briefs, Case Vault, Gorsuch, LBB, Legal, News and Events | No Comments

In a “per curiam” opinion, meaning a decision authored by the entire Court, instead of a single justice, the United States Supreme Court granted a stay of the Occupational Safety and Health Administration (OSHA) vaccine mandate for employers with 100 or more workers. The rule, therefore, will not go into effect until the case goes through the entire appellate process.

But the Court’s division can be further assessed by the fact that the three more liberal justices—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan— dissented from the opinion, and Justices Clarence Thomas and Samuel Alito joined a very strong concurring opinion by Justice Neil Gorsuch.

The Court’s sensible approach to the issue simply noted that OSHA’s “emergency standard,” which it used here and which circumvents the usual public notice and comment accountability processes, should be used with precision and caution. Instead, the Court notes that the OSHA rule which applies to 84 million workers “requires workers receive a COVID-19 vaccine, and it pre-empts contrary state laws,” works as “a blunt instrument.” It found the exemptions presented (for employees who work outside 100 percent of the time or who work exclusively outdoors, for example) were “largely illusory.” The rule “draws no distinctions based on industry or risk of exposure to COVID-19.”

The Court found those objecting to the rule were “likely to succeed on the merits of their claim that [OSHA] lack[s] authority to impose the mandate.”

In doing so, the Supreme Court returns power to the states and the people, where it belongs, because the vaccine mandate goes way beyond establishing a simple workplace standard, as the agency is charged to enact, and into establishing nationwide public health policy. Remember, OSHA has never in its history done anything like this.

And here is where Justice Gorsuch’s concurrence is extremely helpful because it acknowledges what most Americans understand. This administrative mandate is trying to accomplish what President Joe Biden could not get done through the people’s representatives. He is trying to enact something Congress up until now has rejected.

If the people want a vaccine mandate, they could easily demand it from Congress. The reality is most people do not. In fact, the President’s approval numbers have been steadily declining. The latest numbers show him at an all-time low of 33 percent.  Fifty-five percent disapprove of his handling of the pandemic.

That is why President Biden had to work through OSHA to establish this national vaccine mandate. He lacks the necessary support to do it otherwise.

Justice Gorsuch wrote:

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress.

That power belongs to the people, said the Supreme Court today—to those most immediately accountable to them. The concurrence noticed that “a majority of the Senate even voted to disapprove OSHA’s regulation.” Therefore, it seemed reasonable to conclude “the agency pursued its regulatory initiative only as a legislative ‘work-around.’”

With this decision, the Court re-affirms what it has said in the past, that major questions of doctrine with broad effects on the public are left to the people’s elected representatives, and that they must make it very clear when they are giving such broad power to an agency. The concurrence said this rule, known as the “major questions doctrine”:

[E]nsures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.

And even then, the concurrence suspects that such an intrusive mandate brought through the backdoor of an administrative agency might run afoul of the “nondelegation doctrine,” which “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.”

Justice Gorsuch concludes:

On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.

Whatever your view of the COVID vaccine in general, it should be encouraging to all to see the Court protecting the Constitutional structures that guard our liberties in this way. As Justice Gorsuch put it, “The question before us is not how to respond to the pandemic, but who holds the power to do so.”

The rule will be halted for now, but the case will continue. As we await further proceedings let us pray for a wiser, more honest, and unifying approach to fighting the pandemic going forward.